TMI Blog2021 (2) TMI 458X X X X Extracts X X X X X X X X Extracts X X X X ..... rs Chemical Works Works [ 2020 (2) TMI 1443 - PUNJAB AND HARYANA HIGH COURT] as held by Hon ble Member (Judicial); Or these appeals should be dismissed as the decision of Hon ble Punjab Haryana High Court in case of M/s Prabhat Fertilizers Chemical Works Works [ 2020 (2) TMI 1443 - PUNJAB AND HARYANA HIGH COURT] is not applicable as has been held by Hon ble Member (Technical). - Customs Appeal No. 60758 of 2019, 60759 of 2019 - INTERIM ORDER NO. 1-2/2021 - Dated:- 3-2-2021 - HON BLE MR. ASHOK JINDAL, MEMBER (JUDICIAL) AND HON BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Present for the Appellants: Mr. Jagmohan Bansal Mr. Naveen Bindal, Advocates Present for the Respondent: Mr. Rajiv Gupta Mr. M.S. Dhindsa, Authorised Representatives ORDER PER ASHOK JINDAL: These appeals have been filed against the impugned order dated 28.05.2019, in which the show cause notices have been issued on 07.10.2016. 2. The facts of the case are that the appellants are importers of bicycle parts. An intelligence was gathered that the appellants were engaged in evasion of customs duty by loading bicycles parts from China routing the same through Malays ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o demand can be made in the absence of power/mechanism prescribed under the Act or Rule made thereon. To support, he relied on the decision of Hon ble Apex Court in the case of CCE vs Larsen Toubro 2015 (39) STR 913 (SC). He also relied on the decision of Hon ble Apex Court in the case of ITC Ltd vs. CCE, Kolkata-IV 2019-TIOL-418-SC-CUS-LB to say that without challenging the assessment made under Section 17 of the Customs Act, 1962, the refund claim cannot be entertained under Section 27 of the Customs Act, 1962. It is his submission that Section 27 and Section 28 are the machinery provisions which provide the procedure to be adopted in case of refund or demand of duty. In the absence of amendments/modifications have been made in the bill of entry on the basis of which assessment has been made, the proceedings under Section 28 of the Act cannot be initiated. He also submitted that the said view of the Hon ble Apex Court has been followed by the Hon ble Punjab Haryana High Court in the case of M/s Jairath International And Another vs. U.O.I. 2019-TIOL-2459- HC-P H-CUS. 3.3 It is further submission that at the time of clearance of imported goods, the Revenue examined the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vishal Gupta Others vide Final Order No. A/63225-63234/2018 Tribunal Chandigarh. 4.1 On the other hand, the ld. AR submitted that the decision in the case of M/s Harkaran Dass Vedpal (supra) relied upon by the appellants is not applicable to the facts of this case as in the said case, the show cause notice was issued on 19.03.2009 and in the case in hand, the show cause notices have been issued on 07.10.2016 and the explanation 4 to Section 28 clearly states that the said explanation is not applicable to the show cause notices issued during the period between 14.05.2015 till 28.03.2018. 4.2 With regard to the issue that the show cause notice cannot be issued without filing appeal against the assessment of bill of entry following the decision in the case of ITC Ltd (supra), it is a submission that the Hon ble Apex Court was dealing with the definition of export goods and application of valuation rule to the exported goods. In the present case, there is no issue of valuation of exported goods or imported goods rather it is a case where importer ahs violated Section 46 of the Customs Act by mis-declaration in the bill of entry regarding the country of origin of the goods as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted in their statements recorded under Section 108 of the Act, which is an admissible evidence. To support his contention, he relied on the following decisions and prayed that the appeals resulting to be dismissed. (a) Copier Force India Ltd vs. CCE, Chennai 2008 (231) ELT 224 (Tri. Chennai) (b) Shri Ulanganayagi Ammal Steels vs. CCE, Trichy 2008 (231) ELT 434 (Tri. Chennai) (c) CCE, Trichy vs. Shri Ulanganayagi Ammal Steels 2009 (241) ELT 537 (Tri. Chennai) (d) K.I. Pavunny vs. Asst. Collec., Cochin 1997 (90) ELT 241 (SC) (e) Asst. Collec., Rajahmudry vs. Duncan Agro Ind. Ltd. 2000 (120) ELT 280 (SC) (f) Naresh J Sukhwani vs. U.O.I. 1996 (83) ELT 258 (SC) (g) Swati Menthol Allied Chem Ltd vs. Jt. Dir., DRI 2014 (304) ELT 21 (Guj.) 5. Heard both the sides and considered the submissions. 6. From the above arguments, the following issues arises: (i) Whether the show cause notices issued on 07.10.2016 and adjudicated on 28.05.2019 shall stand vacated in terms of the explanation 4 to Section 28 of the Customs Act, 1962 or not? (ii) Whether the show cause notice can be issued for recovery under Section 28 of the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, serve notice on the person chargeable with duty or interest which has not been so levied or which has been so short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. (5) xxxxx (6) xxxxx (7) xxxxx (8) The proper officer shall, after allowing the concerned person an opportunity of being heard and after considering the representation, if any, made by such person, determine the amount of duty or interest due from such person not being in excess of the amount specified in the notice. (9) The proper officer shall determine the amount of duty or interest under sub-section (8)- (a) within six months from the date of notice, where it is possible to do so, in respect of cases falling under clause (a) of sub section (1); (b) within one year from the date of notice, where it is possible to do so, in respect of cases falling under sub-section(4). (10) xxxxxxx (11) xxxxxxx Explanation 1. Xxxxxx Explanation 2. xxxxxx Explanation 3. xxxxxx W.e.f. 29/03/2018, Sub-section (9) of Section 28 has been amended and a ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Section 28 as it stood immediately before the date on which such assent is received. Further, the said explanation has been amended by the Finance Bill, 2020. The same is reproduced as under: Explanation 4 For the removal of doubts, it is hereby declared that notwithstanding anything to the contrary contained in any judgment, decree or order of the Appellate Tribunal or any court or in any other provision of this Act or the rules or regulations made there-under, or in any other provision of this Act or the rules or regulations made there-under, or in any other law for the time being in force, in cases where notice has been issued for non-levy, short-levy, non-payment, short-payment or erroneous refund, prior to the 29th day of March, 2018, being the date of commencement of the Finance Act, 2018, such notice shall continue to be governed by the provisions of Section 28 as it stood immediately before such date. As per the said provisions the contention of the Revenue is that for the show cause notice issued between the period from 14.05.2015 till 28.03.2018, the explanation dated 28.03.2018 is not applicable. 8. Admittedly, in this case the sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment years falling prior to 1997-98 in view of the amended provision providing a three year limitation, this Court in the case of Ballarpur Industries Ltd. Vs. State of Punjab (2010) 35 PHT 5 (P H) decided in favour of the assessee and held that assessment of any year falling prior to 1997-98 shall be time barred if it is framed after the expiry of 3 years from 03.03.1998 i.e. date on which limitation period was prescribed. The ratio of the judgment in Ballarpur's case was followed by another Division Bench of this Court in State of Punjab Vs. Patiala Cooperative Sugar Mills Ltd. VATAP No. 110 of 2013 decided on 26.02.2014. The relevant portion of the judgment in Ballarpur's case, for ready reference, reads as under:- There is no dispute that prior to the amendment of provisions of Section 11 of the PGST Act w.e.f. 03.03.1998 there was no limitation provided for the assessing authority under Sub Section (1) of Section 11 to assess the amount of tax due from the dealer on the basis of returns if he was satisfied with the returns furnished by the dealer. There was also no limitation provided for the assessing authority to assess the dealer under sub section (3) of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub Section (4) of Section 10 or by the Assessing Authority under Section 11 of the PGST Act. Therefore, in view of the above discussions, we are of the considered opinion that the findings recorded by learned Tribunal vide its impugned order (Annexure P-15) that there exists no justification for giving any relief to the petitioner company even after taking into account the limitation concept on the ground that the petitioner company cannot be absolved of their liability to pay purchase tax as per their returns by filing misleading statements, cannot be countenanced and thus are set aside. As a sequal thereto, the impugned order dated 30.01.2005 (Annexure P-15) qua the demand of tax for the assessment years 1995-96 and 1996-97 is set aside. The afore-stated Amendment of Section 28 came into force w.e.f. 29.03.2018 and in the case of present Petitioners till date no order has been passed. Applying the principles of retroactive amendment, the Respondent was bound to pass order by 28.03.2019 which Respondent has failed. The Respondent has failed to pass order within one year from the date of Show Cause Notice, assuming the date to be 29.03.2018 on the principle of retroacti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtnership firms are quashed. The observation of the Hon ble High Court is that the amendment made on 28.03.2018 is retroactive not retrospective, which means that the show cause notices issued prior to 29.03.2018, shall deemed have to be issued on 28.03.2018 and the same are to be adjudicated within one year except special circumstances where the extension of time for adjudication has been granted. The explanation dated 28.03.2018 has been further clarified in the Finance Bill 2020, which has been reproduced above. 9. After amendment to the explanation 4 to Section 28 of the Customs Act, the Revenue sought clarification from the Hon ble High Court in the case of M/s Prabhat Fertilizers Chemical Works in CM- 6352-CWP-2020 in CWP No. 23433 of 2019 and the Hon ble High Court has clarified the same and observed as under: 4. The Applicant has filed present application on the ground that Section 28 has been amended by Finance Act, 2020 whereby Explanation 4 has been substituted and as per amended explanation all show cause notices issued prior to 29.03.2018 shall be governed by Section 28 as it stood prior to 29.03.2018. The show cause notice in the present case was issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he explanation provides that cases pending before 29.03.2018 would be adjudicated as per law existing prior to 29.03.2018. We have not declared amendment of Section 28(9) retrospective whereas we have applied principles of retroactive amendment. Applying the principles of retroactive amendment we have held that authority was bound to decide show cause notice within one year from 29.03.2018 (since time was not extended). In view of above findings, we find that present application is devoid of merits and deserves to be dismissed and accordingly dismissed. 10. As per the amended explanation, the Revenue wants to save the show cause notices issued prior to 28.03.2018 to say that these show cause notices have no binding of explanation 4 to Section 28 of the Customs Act, 1962, but the Hon ble High Court has explained that we are not holding that the explanation 4 to Section 28 of the Act is not retrospective but same is retroactive which means all the show cause notices issued prior to 28.03.2018, are to be adjudicated within one year from 28.03.2018. 11. Admittedly, in the case in hand, the show cause notices issued prior to 28.03.2018 and the same have not been adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorized Representative, alongwith his submissions and during the course of argument is reproduced below: 07.10.2016 Show Cause Notice, answerable to multiple adjudicating authorities namely Commissioner Customs, Ludhiana and Additional/ Joint Commissioner Customs, Nhava Sheva issued. Since show cause notice was answerable to multiple adjudicating authorities, a common adjudicating authority was to be identified and notified by the Board (CBIC) 25.01.2017 Party informed that in addition to ₹ 76,64,287/- deposited by them earlier, towards differential duty demanded, they have additionally deposited ₹ 30,00,000/-, and will be depositing the remaining amount shortly. No reply to the Show Cause Notice was filed. 24.04.2017 They have additionally deposited ₹ 32,00,000/- towards the demand of differential duty, and will be depositing the remaining amount shortly. No reply to the Show Cause Notice was filed. 27.07.2017 They have additionally deposited ₹ 45,00,000/- towards the demand of differential duty, and will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Record of Personal Hearing is reproduced, Sh. Deepak Gupta, Advocate of the party appeared today on behalf of M/s Gursam International, New Shimlapuri, Ludhiana and re-iterated the submissions made in their interim written submissions dated 25.02.2019. He further sought time of two weeks to file final reply as he needs some instructions from the noticee. 02.04.2019 Since the party did not filed the final reply in the matter, they were requested to file the final reply within two weeks. They were also informed that in case they do not file the final reply, adjudicating authority shall proceed on the basis available facts and records. 09.04.2019 Party informed that their interim reply dated 25.02.2019 should be treated as final reply and case adjudicated without any further personal hearing in the matter. 28.05.2019 Show Cause Notices are adjudicated. 3.0 From the timelines as narrated above that in the present case the appellant was issued the show cause notice on 07.10.2016, making the same answerable to multiple adjudicating author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court in case of in case of M/s Harkaran Dass Vedpal [2019 (368) ELT 546 (P H)] where Show Cause Notice dated 19.03.2009 and 20.02.2009 were quashed by following the ratio of GPI Textiles Limited [2018 (362) ELT 388 (P H)] where-under the SCN was quashed as it was pending for more than 16 years old and the proceedings had not concluded within reasonable time. Since the adjudicating authority has failed to adjudicate the case within the period prescribed the adjudication order should fail on this account itself, because as these amendments have been held to be retroactive by the Hon ble Punjab and Haryana High Court, all these Show cause Notices issued by on any date prior to 29.03.2018, shall be deemed to have been issued on 29.03.2018 sand should have been adjudicated by 29.03.2019. 5.0 The above argument which has been agreed to by the learned brother while deciding the issue in favour of the appellants though appears to be attractive is devoid of any merits. 5.1 Vide the Finance Act 2018, w.e.f. 29.03.2018, Section 28(9) has been amended and sub section 9A has been added thus making it mandatory for determining the duty and interest under sub-section (8) within 6 mont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the show cause notices, Hon ble High Court has also taken the note of the amendments made by the Finance Act, 2018 and has observed as follows: 13. The judgment of GPI Textiles dealt with Section 11A of Central Excise Act, 1944 and present matters relate to Section 28 of Customs Act, 1962 which is para materia with Section 11A of Central Excise Act. In the present petitions, show cause notices were issued in 2009 and concededly are still pending adjudication in spite of no stay on continuing of proceedings/liberty granted to proceed with the adjudication of the show cause notices. As per judgment of GPI Textiles, show cause notice deserves to be quashed if it is pending adjudication beyond a reasonable period and in the present case, notice(s) are pending for more than 10 years which by no stretch of limitation can be held as reasonable period. In GPI Textiles this court noticed judgment of Hon ble Supreme Court in the case of Bhatinda District Co-op. Milk P. Union Limited - 2007 (217) E.L.T. 325 (S.C.) where 5 years period has been considered as reasonable period for revision. Retroactive application of the amended provisions of Section 28 of the 1962 Act : 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the expiry of 3 years from 3-3-1998 i.e. date on which limitation period was prescribed. The ratio of the judgment in Ballarpur s case was followed by another Division Bench of this Court in State of Punjab v. Patiala Cooperative Sugar Mills Ltd., VATAP No. 110 of 2013 decided on 26-2-2014. The relevant portion of the judgment in Ballarpur s case, for ready reference, reads as under :- There is no dispute that prior to the amendment of provisions of Section 11 of the PGST Act w.e.f. 3-3-1998 there was no limitation provided for the assessing authority under sub-section (1) of Section 11 to assess the amount of tax due from the dealer on the basis of returns if he was satisfied with the returns furnished by the dealer. There was also no limitation provided for the assessing authority to assess the dealer under sub-section (3) of Section 11 of the Act and consideration of evidence produced, if any. However, the position was materially altered w.e.f. 3-3- 1998 which provided that the assessing authority was required to pass an order of assessment on the basis of returns within a period of three years from the last date prescribed for furnishing the last return in respect of suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n after taking into account the limitation concept on the ground that the petitioner company cannot be absolved of their liability to pay purchase tax as per their returns by filing misleading statements, cannot be countenanced and thus are set aside. As a sequal thereto, the impugned order dated 30-1-2005 (Annexure P-15) qua the demand of tax for the assessment years 1995-96 and 1996-97 is set aside. Emphasis supplied The afore-stated amendment of Section 28 came into force w.e.f. 29-3- 2018 and in the case of present petitioners till date no order has been passed. Applying the principles of retroactive amendment, the respondent was bound to pass order by 28-3-2019 which respondent has failed. The respondent has failed to pass order within one year from the date of show cause notice, assuming the date to be 29-3-2018 on the principle of retroactive operation; still further there is nothing on record/to a pointed query to even suggest that the said period was ever extended by one year by any senior officer in terms of the first proviso to sub-section (9) of amended Section 28. No notice under sub-section (9A) has been served upon petitioners by the proper officer seeki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, etc are concepts which flow from the principles of equity and good conscience and cannot be the defence in the case where the person claiming such equity has deliberately delayed the proceedings. Can a person charged with fraud and who deliberately avoids the proceedings claim equity and rule of good conscience. As far as it is understood, first and foremost principle of equity as propounded lays down that, those who claim equity should come out with clean hands. Thus in my view the decision of the Hon ble High Court in case of GPI Textiles, do not support the case of the appellant for the reasons that there has been no inordinate delay in completion of the adjudication proceedings and in case if any delay is there it is for the reason of non submission of the reply by the appellants in time to the show cause notice, making it impossible for the adjudicating authority to complete the adjudication proceedings. In Broom s Legal Maxims on (P-162), Maxim states, LEX NON COGIT AD lMPOSSIBILIA , the law does not compel a man to do that which he cannot possibly perform. The law itself and the administration of it, said Sir W. Scott, with reference to an alleged infraction of the reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice pertain to the period covered by explanation 4 to Section 28 of the Customs Act, 1962. Ld. Counsel admitted and categorically replied that none of the show cause notices under consideration in the decisions referred by him during the course of argument was for the period covered by explanation 4 to Section 28 that is after enactment of Finance Act, 2015. The said submission of Counsel is noted and taken on record. Thus in our view this decision of the Hon ble Punjab and Haryana High Court and the decisions in case of M/s Shri Ram Agro Chemicals (P) Ltd [CWP No. 9863 of 2017, SCN dated 17.05.2007], M/s Anil. K. Soni [CWP No. 6862 of 2017, SCN dated 02.04.2009], M/s Prabhat Fertilizers Chemical Works [CWP No. 23433 of 2019, SCN dated 26.02.2009] and [CWP No. 34817 of 2019, SCN dated 15.01.2010] quashing the Show Cause Notices by following the ratio of M/s Harkaran Dass Vedpal's case (supra) and GPI Textiles., which have relied upon this case for the show cause notices issued during the period not covered by the explanation 4, are not applicable to the present case. 5.6 During the course of arguments on 27.11.2020, learned counsel had relied upon the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds/issues and Applicant is disputing only one issue. If the contention of Applicant is accepted still our order dated 18.12.2019 cannot be recalled because Applicant is not disputing second issue i.e. non adjudication within reasonable period of limitation. Hon ble High Court then explain the principle of retroactive amendment, applied by them for holding that the show cause notice should have been adjudicated within one year from the date of enactment. Thus observation cannot be said to the pronouncement of the Hon ble High Court on the Explanation 4 as it was introduced by the Finance Act, 2018. Explanation 4, was not the issue before the Hon ble High Court, in the case of Harkaran Dass Vedpal or in the case of Prabhat Fertilizers Chemical Works, neither the same was considered by the Hon ble High Court in this Miscellaneous Petition seeking the recall of the earlier order in case of Prabhat Fertilizers Chemical Works. Thus in my view this order dated 27th July 2020 of the Hon ble High Court also do not alter the situation. 5.7 From the reading of Explanation 4 , as introduced by the Finance Act, 2018, it is evident that while making the amendments in section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned assessee afresh as per the express stipulations in Section 67 of the Act read with the relevant rules in that regard. In terms of this order, the competent authority shall call upon every assessee to complete the formality strictly as per the requirements of the stated provisions disregarding the order passed by the High Court in his case, if the same deviates from the statutory compliances. That be done within four weeks without any exception. 13.We reiterate that any order passed by the High Court which is contrary to the stated provisions need not be given effect to in respect of all the cases referred in the affidavit by the State Government before this Court and fresh cases which may have been filed or likely to be filed before the High Court in connection with the subject matter of these appeals, by all concerned and are deemed to have been set aside/modified in terms of this order. 5.8 Subsequently by the Finance Act, 2020, the scope of Explanation 4 , has been extended to cover all the show cause notices issued prior to the enactment of Finance Act, 2018, and it has been declared that all such show cause notices shall be governed by the provisions of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 7.10.2016 should have been adjudicated by 29.03.2019, in view of the decisions of Hon ble High Court in case of Harkaran Dass Vedpal. I also find that in the present case the Appellant, himself has vide his letter dated 09.04.2019, closed the arguments in the matter, and have requested the adjudicating authority to adjudicate the matter. Even at the time when this correspondence was made by the appellant, the date was much beyond the 29.03.2018. In case the adjudicating authority would have proceeded without taking closure of submissions which were being made by the appellant, the order would have been considered as bad in law for the violation of the principle of natural justice. In my view any interpretation of statue which makes it a dead letter in law, and allow the parties to take benefit of their own misdoing and delays, cannot be a fair interpretation of law. The law and statue is organic and should be interpreted lively so as ensure fair play of justice to the contending interests. 5.11 Amendments were made to by insertion of sub-section (2A) to the Section 2A with effect from 11.05.2002 by the Finance Act, 2002. The subsection (2A) as inserted read as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al such changed circumstances e.g. a binding decision on the issue in its favour. 7.One of the decisions relied on in Kumar Cotton Mills is the decision of Delhi High Court in ITC v. UOI. In this case the issue of jurisdiction of this Tribunal to grant an order of stay was specifically considered. The High Court took the view that apart from the proviso to Section 35F as an appellate authority the Tribunal has inherent power to grant relief in exercise of its appellate jurisdiction. Relevant portion of the judgment is quoted below :- Apart from the proviso to Section 35F, the appellate authority has inherent power of granting interim relief in the exercise of its appellate jurisdiction. This has been so recognized explained by the Supreme Court in the case of Income Tax Officer v. Mohd. Kunhi, 92 ITR 341. We must make it clear that it does not mean that in every case where appeal is filed the Collector (Appeals) or the Tribunal must, as a matter of course, grant interim relief. The guidelines for the grant of interim relief are contained in the proviso to Section 35F, namely, relief will be granted only if there would be undue hardship to the person if he is asked to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Golden Hind Shipping (India) Pvt. Ltd., 1993 (68) E.L.T. 739 (Ori.). We will now examine the decision of the Orissa High Court. In the above case the issue that came up for consideration was whether CEGAT had the power to direct the petitioner to pay a sum of ₹ 5 lakhs as compensation to the Opposite party No. 1 in exercise of its powers under Section 129B(1) of the Customs Act, 1962 and pass another order enhancing the compensation to ₹ 20 lakhs through amendment of the said order in exercise of its power under Section 129B(2) of the Customs Act. It is in this context the Hon ble High Court compared the powers of CEGAT under Section 129B of the Customs Act and powers of ITAT under Section 254(1) of the Income Tax Act. Their Lordship were not considering the power of the Appellate Tribunal to grant stay as an inherent power of an appellate authority when there is no statutory provision for granting stav. It is to be noted that this specific issue was considered by the Delhi High Court in ITC Ltd. v. UOI and the Hon ble High Court placed reliance on ITO v. M.K. Mohammed Kunhi. We are, therefore of the view that Kumar Cotton Mills was correct in following the decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterim orders as are necessary. This is only re-stated in Rule 41 of the Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) Rules, 1982. 10.Income Tax Appellate Tribunal had occasion to consider an identical issue relating to the power of the Tribunal to grant further stay after the expiry of six months since passing the first order of stay, in Centre for Women s Development Studies v. Deputy Director of Income Tax. The relevant portion from the above order reads as follows :- On a careful perusal of the relevant new provisions in the law and aforesaid judicial pronouncements, we are of the considered opinion that sub-section (2A) was inserted in Section 254 to curtail the delays and ensure the disposal of the pending appeals within a reasonable time frame. There is no intention of the Legislature to curtain or withdraw the powers of the Tribunal for granting a stay exceeding a period of six months. Had it been the intention of the Legislature, there would be a specific amendment in the Act to this effect because if the powers of the Tribunal for granting the stay exceeding a period of six months are withdrawn by this amendment, the object of imparting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime specified. The reasoning of the Tribunal expressed in the impugned order and as expressed in the Larger Bench matter, namely, IPCL v. Commissioner of Central Excise, Vadodara (supra) cannot be faulted. However we should not be understood as holding that any latitude is given to the Tribunal to extend the period of stay except on good cause and only if the Tribunal is satisfied that the matter could not be heard and disposed of by reason of the fault of the Tribunal for reasons not attributable to the assessee. By referring to this amendment, and the interpretations put it to by the larger bench of tribunal and Hon ble Apex Court, I would like to point out that both these judicial authorities had followed the principles of purposive interpretation rather than the literal interpretation, while interpreting similar provisions. The sub-section (8) to the section 28, provides for a strict directive to the adjudicating authorities to complete the adjudication proceedings in the time bound manner. However, the said section cannot be interpreted to mean that adjudicating authority is in race against the time and the noticee can by operation of the provisions of this sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than `directly'; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea . According to Advanced law Lexicon by P. Ramanatha Aiyar 3rd Edition, 2005 reasonable time means as follows: That is a reasonable time that preserves to each party the rights and advantages he possesses and protects each party from losses that he ought not to suffer. Reasonable Time is defined to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. If it is proper to attempt any definition of the words reasonable time , as applied to completion of a contract, the distinction given by Chief Baron Pollock may be suggested, namely, that a reasonable time means as soon as circumstances will permit. In determining what is a reasonable time or an unreasonable time, regard is to be had to the nature of the inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely and there is nothing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the Court to give him relief on that basis. The rule undoubtedly is that the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly resul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... else. It is his plain duty to surrender possession of the property as a licensee and seek his remedy separately in case he has acquired title to the property subsequently though some other person. He need not do so if he has acquired title to the property from the licensor or from someone else lawfully claiming under him, in which case there would be clear merger. The respondent has not surrendered possession of the property to the appellant even after the termination of the licence and a institution of the suit. The appellant is, therefore, entitled to recover possession of the property. We accordingly allow the appeal with costs throughout and direct the respondent to deliver possession of the property to the appellant forthwith failing which it will be open to the appellant to execute the decree and obtain possession. The explanation offered by the plaintiffs is plausible. The defendants did not specifically raise any plea that the time taken was unreasonable. No evidence was led. No specific plea was raised before the trial Court and first appellate Court. The question of reasonable time was to be factually adjudicated. For the first time in the Second Appeal the disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Rule or Act itself, the department has no authority to issue Show Cause Notice under Section 28 to re determine or hold any claim of exemption as duty not levied or short levied, not paid or short paid. It is settled law that no demand can be made in the absence of power/ mechanism prescribed under the Act or Rules made thereunder. Contention is supported with latest judgment of Hon'ble Supreme Court in the case of CCE Vs Larsen Toubro 2015 (39) STR 913 wherein Hon'ble Supreme Court has set aside demand of Service Tax on works contract executed prior to 01.07.2007, on the ground that there is no mechanism to determine value of service component. Similar view has been expressed by Hon'ble Punjab and Haryana High Court in the case of Lakshya Media Pvt. Ltd. versus State of Punjab 2016 (4) PLR 455 while dealing with question of recovery of non-payment of tax on advertisement. That the Respondent at the time of clearance of imported goods examined declared value, duty and claim of exemption under Notification No. 46/2011-CUS dated 01.06.2011. From the conspectus of examination order of each and every bill of entry, it would be gleaned that claim of exemption notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be reviewed by way of filing appeal against the same before issuance of SCN for recovery of duty, which is against the well settled law. It is well settled law that SCN for recovery of Customs duty leviable but not paid can be issued under section 28 ibid subsequent to clearance under section 47 as held by the Honble Supreme Court in case of Union of India Vs Jain Shudh Vanaspati Ltd 1996(86) ELT 460 (S.C.), [para 5 and 6] and Hon'ble Madras High Court in case of Venus Enterprises Vs Commissioner of Customs Chennai. [2006 (199) ELT 405 (Mad)] [para 6]. The observations of the Madras High Court have been approved by the Hon ble Supreme Court at [2007(209) ELF A61(SC)] The well settled legal position that demand of duty can be made under Section 28 without reviewing the assessment under Section 129D has also been reiterated by the Hon ble Tribunal in case of Mahindra Mahindra Vs Commissioner of Customs (Import), Mumbai [2014 (312) ELT (Tri.-Mumbai|. 6.5 Before we proceed to examine this aspect, it is necessary to reproduce the relevant provisions of the Custom Act, 1962 as they existed at the time when the show cause notice was issued Section 12 Dutiable goods. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment has not been done or a speaking order has not been passed on re- assessment, the proper officer may audit the assessment of duty of the imported goods or export goods at his office or at the premises of the importer or exporter, as may be expedient, in such manner as may be prescribed Explanation.- For the removal of doubts, it is hereby declared that in cases where an importer has entered any imported goods under section 46 or an exporter has entered any export goods under section 50 before the date on which the Finance Bill, 2011 receives the assent of the President, such imported goods or export goods shall continue to be governed by the provisions of section 17 as it stood immediately before the date on which such assent is received. Section 28 Recovery of duties not levied or not paid or short-levied or short- paid or erroneously refunded. (1) Where any duty has not been levied or not paid or short-levied or short-paid or erroneously refunded, or any interest payable has not been paid, part-paid or erroneously refunded, for any reason other than the reasons of collusion or any wilful mis-statement or suppression of facts,- (a) the proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een shortlevied or short-paid or erroneously refunded, or interest payable has not been paid, part-paid or erroneously refunded, by reason of,- (a) collusion; or (b) any wilful mis-statement; or (c) suppression of facts, by the importer or the exporter or the agent or employee of the importer or exporter, the proper officer shall, within five years from the relevant date, serve notice on the person chargeable with duty or interest which has not been so levied or not paid or which has been so short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. (5) to (7) . (8) The proper officer shall, after allowing the concerned person an opportunity of being heard and after considering the representation, if any, made by such person, determine the amount of duty or interest due from such person not being in excess of the amount specified in the notice. (9), (10) (11) Notwithstanding anything to the contrary contained in any judgement, decree or order of any court of law, tribunal or other authority, all persons appointed as officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Customs may, in cases where it is not feasible to make entry by presenting electronically, allow an entry to be presented in any other manner: Provided further that if the importer makes and subscribes to a declaration before the proper officer, to the effect that he is unable for want of full information to furnish all the particulars of the goods required under this sub-section, the proper officer may, pending the production of such information, permit him, previous to the entry thereof (a) to examine the goods in the presence of an officer of customs, or (b) to deposit the goods in a public warehouse appointed under section 57 without warehousing the same. (2) Save as otherwise permitted by the proper officer, a bill of entry shall include all the goods mentioned in the bill of lading or other receipt given by the carrier to the consignor. (3) A bill of entry under sub-section (1) may be presented at any time after the delivery of the import manifest or import report, as the case may be: Provided that a bill of entry may be presented even before the delivery of such manifest or report, if the vessel or the aircraft or the vehicle by which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded also that] if the Board is satisfied that it is necessary in the public interest so to do, it may, by order for reasons to be recorded, waive the whole or part of any interest payable under this section. 6.6 Discussing the relationship and interplay between these provisions Hon ble Supreme Court has in the case of Virgo Steel *2002 (141) ELT 598 (SC)] has held as follows: 8. We will next consider the requirement of Section 28 of the Act and the applicability of the principle of waiver to the said requirement of that Section. While so doing, it is to be noted that our discussion of Section 28 of the Act is with reference to the Section as it stood at the relevant time and not with reference to the existing Section 28 of the Act. The Tribunal by the impugned order has held that in the absence of a notice under Section 28 of the Act, the recovery of duty which has escaped collection, is impermissible in law. While accepting this argument, the Tribunal has placed reliance on a judgment of this Court in Collector of Customs, Calcutta v. Tin Plate Co. of India Ltd. [1996 (87) E.L.T. 589]. It is true that in the course of the above-cited judgment, this Court had held that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the jurisdictional aspect of the proper Officer to recover the escaped duty. In the said view of the matter, we are of the opinion that the law laid down by this Court in Tin Plate Co. s case (supra) is that issuance of a notice under Section 28 is a mandatory requirement of that Section, with which we are in agreement. We also notice the very important fact that in that case the question of waiver did not arise and what was considered by this Court was the contention of the Revenue that a subsequent letter written by the Revenue after the expiry of the period of limitation would cure the defect of non-issuance of a notice. 6.7 Similarly in case of Jain Shudh Vanaspati relied upon by the learned Authorized Representative, Hon ble Apex Court has clearly laid down that the notice under Section 28 could have been issued only subsequent to the clearances of the goods. 6.8 Plain reading of the provisions also suggest the same. Custom duty is levied as per the provisions of the section 12 of the Act. The manner of entry of goods on importation and clearance of goods for home consumption has been provided by the section 46 and 47. Section 17 of the Custom Act provide for mann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 47, makes it necessary that assessment proceedings should have been completed and finalized before the order of clearance of the goods is made under Section 47. The limitation in respect of initiation of the proceedings for completion of assessment is provided by the section 28 of the Act. Section 28 (1) and Section 28 (4) provide that in case where the Custom authorities are of the opinion that any duty and interest has been not levied or not paid or short levied or short paid, they will initiate the proceedings for determination of the quantum of non levied/ nonpayment or short levy/ short payment by issuance of the notice under this section within the period of limitation as prescribed by this section. From the plain reading of Section 28, it is quite evident that the period of limitation has to be computed from the relevant date as defined by Explanation 1 to that section. This explanation defines the relevant date qua the- The date of the order of clearance of goods made by the proper officer; In case of provisional assessment the date of final adjustment of duty consequent upon finalization of the assessment or reassessment thereof; In case of erroneous re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -assessment is an order of assessment as per Section 2(2), as such, it is appealable in case any person is aggrieved by it. There is a specific provision made in Section 17 to pass a reasoned/speaking order in the situation in case on verification, self-assessment is not found to be satisfactory, an order of re-assessment has to be passed under Section 17(4). Section 128 has not provided for an appeal against a speaking order but against any order which is of wide amplitude. The reasoning employed by the High Court is that since there is no lis, no speaking order is passed, as such an appeal would not lie, is not sustainable in law, is contrary to what has been held by this Court in Escorts (supra). 44. The provisions under Section 27 cannot be invoked in the absence of amendment or modification having been made in the bill of entry on the basis of which self-assessment has been made. In other words, the order of self-assessment is required to be followed unless modified before the claim for refund is entertained under Section 27. The refund proceedings are in the nature of execution for refunding amount. It is not assessment or reassessment proceedings at all. Apart fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same having been assessed and clearance for home consumption having been allowed by the proper officer on importers executing bond, undertaking the obligation of export, in our opinion, the Collector of Customs (Preventive), not being a proper officer within the meaning of Section 2(34) of the Act, was not competent to issue show cause notice for reassessment under Section 28 of the Act. .. 6.9 Rejecting the similar contentions as raised by the learned counsel for the appellant before us, Bombay bench of tribunal held as follows: 7. Regarding the contention of the appellant that the demand of duty under Section 28 of the Customs Act, 1962 is not sustainable because the department did not review the assessments made in the bills of entry at the time of importation under Section 129D does not have any legal basis. The same issue came up before the Hon ble Apex Court in the case of UOI v. Jain Shudh Vanaspati Ltd. case cited supra and the Hon ble Apex Court observed as follows : It is patent that a show cause notice under the provisions of Section 28 for payment of Customs duties not levied or short-levied or erroneously refunded can be issued only subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods under Section 47 of the Act vide Union of India v. Jain Shudh Vanaspati Ltd. [1996 (86) E.L.T. 460 (S.C.)]. Therefore, as rightly held by the Tribunal, if the contention of the appellant s counsel that when the goods were already cleared, no demand notice can be issued under Section 28 of the Act is accepted, we will be rendering the words where any duty has been short-levied as found in Section 28(1) of the Act as unworkable and redundant, inasmuch as the jurisdiction of the authorities to issue notice under Section 28 of the Act with respect to the duty, which has been short-levied, would arise only in the case where the goods were already cleared. In view of the clear finding with regard to the misdeclaration and suppression of value, which led to the undervaluation and proposed short-levy of duty, we do not see any lack of jurisdiction on the part of the adjudicating authority to issue notice under Section 28(1) of the Act. 7.3 The SLP filed against the order of the Madras High Court was also dismissed by the Hon ble Apex Court reported in 2007 (209) E.L.T. A61 (S.C.). The reliance placed by the appellant on the Cotspun case and Mahindra and Mahindra case cited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of documents and computer print outs as documents and as evidence depends on the satisfaction of four conditions prescribed under Section 138C (2) of the Act. There is nothing in the whole impugned order that DRI complied with Section 138C of the Act while placing reliance upon documents/ conversation printed out from the computer or hard disks resumed during investigation. In the absence of compliance of Section 138C of the Act documents/conversation printed out from computers are not admissible as evidence against the Appellant and any proceedings on the basis of inadmissible documents/conversation as evidence is not sustainable in the eye of law. Contention is countenanced with case of Anvar P. V versus P.K. Basheer and others, Civil Appeal No. 4226 of 2012 (SC) Final Order No. A/63225-63234/2018 titled as Commissioner of Central Excise versus Vishal Gupta, (Tri-Chd). It is apt to mention that Section 138C of the Customs Act, 1962 is pari materia with Section 65B of the Evidence Act, 1872 Section 36B of the Central Excise Act, 1944. 7.3 Countering the said arguments of the learned counsel, authorized representative stated- In this ground of appeal the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible. (2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: - (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; (c) throughout the material part of the said period, the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mation shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; (b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities; (c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation: For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process. Customs Act, 1962 SECTION 138C. Admissibility of micro films, facsimile copies of documents and computer print outs as documents and as evidence. (1) Notwithstandi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) by different computers operating in succession over that period; or (c) by different combinations of computers operating in succession over that period; or (d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly. (4) In any proceedings under this Act and the rules made thereunder where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, - (a) identifying the document containing the statement and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articular person or which the court may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in that person's handwriting, and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested; (b) admit the document in evidence, notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence; (c) in a case falling under clause (i) also presume, unless the contrary is proved, the truth of the contents of such document.] Explanation. - For the purposes of this section, document includes inventories, photographs and lists certified by a Magistrate under subsection (1C) of section 110. 7.5 From the perusal of the provisions of Indian Evidence Act and Customs Act, 1962 as referred to above it is quite evident that when the electronic record/ document that is produced is produced as a secondary evidence the same needs to be accompanied by the certificate as prescribed by Section 65B (4) of Evidence Act, 1962 or Section 138C (4) of the Customs Act, 1962 from the authority who is in control of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court and the expression document is defined in Section 3 of the Evidence Act to mean any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter. 27. The term electronic record is defined in Section 2(1) (t) of the Information Technology Act, 2000 as follows: 2.(1)(t) electronic record means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche; 28. The expression data is defined in Section 2(1)(o) of the Information Technology Act as follows: 2.(1)(o) data means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer; 29. The applicability o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of M/s P.S and M/s SSPL is located in Hisar and the records of the both were maintained M/s P.S s office at Hisar. On 11.04.2013, a search was conducted at the premises to the M/s P.S and M/s SSPL. The factory of M/s P.S was found working. No variation in stock of inputs as well as finished goods were found in records of the stock maintained in the statutory records and no incriminating documents were recovered during the search of the factory premises of the appellant. Shri Deepak Gupta, Director of M/s SSPL was present in the office and two pen drives were recovered from possession of one Ms. Priyanka Jain, Office Executive. On the basis of two pen drives recovered from the possession of Ms. Jain, the print outs were taken and it was summarized that M/s P.S is engaged in clandestine removal of goods from their head office at Hisar as well as at their office at New Delhi. It was also alleged that the appellants were also engaged in issuing goodless invoices enabling to avail in admissible cenvat credit and it was also alleged that M/s P.S had undervalued their goods. On the basis of the chart, it was found that the quantity of 426.2365 MT was cleared by the M/s P.S as per inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i S. Krishnakumar, in his statement dated 29-1-03. This will meet the requirement of certification in terms of Sub-section 2(d) Section 36B of the Act. They cannot later say that no enquiry was made with the person stipulated u/s 36B(2)(d). Revenue has argued that once the printout is taken in presence of responsible persons who dealt with the data entry in the CPU and retrieval, printouts of such data do not need to comply with the safeguards enlisted u/s 36B(2) of the Act. While this is a reasonable stand, we find that the data retrieved are proved by the bank statements and oral evidence of employees of CFI. Thus the computer printouts are not solely relied on as evidence and the non-fulfilment of conditions under 36B(2) alleged does not affect the printouts being used in proceedings. Relevant extracts of Section 36B are reproduced below : SECTION 36D. Admissibility of micro films, facsimile copies of documents and computer print outs as documents and as evidence. - The Computer printouts are amply corroborated by the bank statements. Therefore the provisions of Section 36B cannot be invoked to make its application in the proceedings impermissible. The printout i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon ble Apex Court are reproduced below: 43. If we may so with great respect, it is proper to read into the above observations more than what the context and the peculiar facts of that case demanded. While it is true that in criminal trials to which the Evidence Act, in terms, applies, this section is not intended to relieve the prosecution of the initial burden which lies on it to prove the positive facts of its own case, it can be said by way of generalisation that the effect of the material facts being exclusively or especially within the knowledge of the accused, is that it may, proportionately with the gravity or the relative triviality of the issues at stake, in some special type of case, lighten the burden of proof resting on the prosecution. For instance, once it is shown that the accused was travelling without a ticket; a prima facie case against him is proved. If he once had such a ticket and lost it, it will be for him to prove this fact within his special knowledge. Similarly, if a person is proved to be in recent possession of stolen goods, the prosecution will be deemed to have established the charge that he was either the thief or had received those stolen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harge of corrupt practice, which cannot be established by mere balance of probabilities, and, if, after giving due consideration and effect to the totality of the evidence and circumstances of the case, the mind of the Court is left rocking with reasonable doubt - not being the doubt of a timid, fickle or vacillating mind - as to the veracity of the charge, it must hold the same as not proved. The same view was followed by this Court P.C. Thomas v. P.M. Ismail and Others - (2009) 10 SCC 239, wherein it was held as follows : 42. As regards the decision of this Court in Razik Ram and other decisions on the issue, relied upon on behalf of the appellant, there is no quarrel with the legal position that the charge of corrupt practice is to be equated with criminal charge and the proof required in support thereof would be as in a criminal charge and not preponderance of probabilities, as in a civil action but proof beyond reasonable doubt . It is well settled that if after balancing the evidence adduced there still remains little doubt in proving the charge, its benefit must go to the returned candidate. However, it is equally well settled that while insisting upon the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther person inculpating the petitioner therein could be used against him as substantive evidence. Of course, the proceedings therein were for confiscation of the contraband. In Surjeet Singh Chhabra v. Union of India - 1997 (89) E.L.T. 646, decided by a two- Judge Bench to which one of us, K. Ramaswamy, J., was a member the petitioner made a confession under Section 108. The proceedings on the basis thereof were taken for confiscation of the goods. He filed a writ petition to summon the panch (mediater) witnesses for cross-examination contending that reliance on the statements of those witnesses without opportunity to cross-examine them, was violative of the principle of natural justice. The High Court had dismissed the writ petition. In that context, it was held that his retracted confession within six days from the date of the confession was not before a Police Officer. The Custom Officers are not police officers. Therefore, it was held that the confession, though retracted, is an admission and binds the petitioner. So there is no need to call Panch witnesses for examination and cross-examination by the petitioner . As noted, the object of the Act is to prevent large-scale smugg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the Chilling Plant. We are unable to understand this reasoning. Once it is an admitted position by the party itself, that these are parts of a Chilling Plant and the concerned party does not even dispute that they have no independent use there is no need for the Department to prove the same. It is a basic and settled law that what is admitted need not be proved. 8.3 The appellants have committed a fraud by routing the goods of Chinese origin through the port of Malaysia and obtaining a Country of Origin Certificate to claim the benefit of exemption notification issued under Preferential Trade Agreement. The evidences to establish the fraud to claim the inadmissible exemption are in form of- invoices culled from the e-mail accounts of the Proprietor of the Appellant and Manger (Import/Export), both of whom have certified it and never doubted it's authenticity which has also been supported by Statements recorded under Section 108 of Customs Act, 1962 which has evidentiary value. Annexure I to the SCN bringing out the details of parallel invoices recovered, Annexure II the details of TRS sent by M/s Gursam International to Multiway Manufacturing for onward tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. [2014 (304) E.L.T. 21 (Guj.)] holding as follows; 32.In that view of the matter by the settled position, we cannot hold that respondent No. 1 lacked the jurisdiction to issue a show cause notice. Had this notification not been issued, the question perhaps would be whether under sub-section (17) of Section 28 despite the decision of the Supreme Court in the case of Sayed Ali (supra), the respondent No. 1 could be considered as a proper officer for the purpose of Section 28. However, it is not necessary for us to examine such question since in our opinion notification dated 6-7-2011 is specific and assigns functions under Sections 17 and 28 to such officer. He is, therefore, the proper officer in terms of Section 2(34) of the Act. Subsequent notification dated 2-5-2012 would not change this position. This is only a further notification assigning further functions to various officers including those under the Directorate of Revenue Intelligence, functions specified in column No. 3 thereof. This notification is not in supersession of the earlier Notification dated 6-7- 2011. Both notifications, therefore, co-exist. In other words notification dated 2-5-2012 has not rescinded th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt would be used. However they never used the said imported equipments in State of U.P. for construction of road. Instead they used the plant as a subcontractor in State of Rajasthan and Tamil Nadu, but even in these cases also they were not named as sub-contractor in the contract awarded for construction of road. As per the conditions of the exemption notification, an importer can claim the benefit of exemption provided they are named as sub-contractor for construction of road. Even this condition was not satisfied. It clearly shows that the appellant never complied with the conditions of the exemption notification and has knowingly violated the conditions. We also find that since the conditions of the notification were not complied with and from the facts of the case it is very clear that the same were never intended to be complied with, we hold that the impugned order confirming demand, penalties and confiscation of goods has been rightly passed. We also find that the officers had handed over the plant for safe custody after seizure and the same could not have been used without permission from the department. Having violated the conditions of Section 110 safe keeping by using th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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